Daymut, M. v. Daymut, A. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
MATTHEW JOHN DAYMUT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANNE MARIE DAYMUT, :
:
Appellant : No. 1840 WDA 2016
Appeal from the Order November 3, 2016
in the Court of Common Pleas of Armstrong County
Civil Division at No(s): 2011-1897-Civil
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2017
Anne Marie Daymut (Wife) appeals from the November 3, 2016 order
that decreed her divorced from Matthew John Daymut (Husband) and set
forth the equitable distribution of the parties’ marital assets. We affirm.
The parties were married in August 2003; Husband filed a complaint in
divorce in November 2011. Economic claims were assigned to a master by
order of October 29, 2015. The master conducted a hearing on March 23,
2016, and filed a report on May 23, 2016. Therein, the master determined
that the value of the marital estate was $33,240.99, and recommended a
50/50 split. Master’s Report, 5/23/2016, at 13 (pages unnumbered).
Wife and Husband filed exceptions and cross-exceptions, respectively,
on which the trial court entertained argument on October 25, 2016. The
trial court disposed of the exceptions by order of November 1, 2016. On
*Retired Senior Judge assigned to the Superior Court.
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November 3, 2016, the trial court entered a divorce decree, and adopted the
master’s proposed scheme of distribution of the marital assets.1
On December 1, 2016, Wife timely filed a notice of appeal. Both Wife
and the trial court complied with Pa.R.A.P. 1925. Wife presents the
following three issues for this Court’s review.
I. Did the trial court err in accepting the master’s general
scheme of distribution, given all the statutory factors?
II. Did the trial court err in failing to properly and fully
consider Wife’s contribution to the marital estate in the purchase
of the marital residence, while not properly considering
Husband’s non-marital assets, specifically his inheritance?
III. Did the trial court err in failing to properly and fully
consider the disparity of the parties’ income, disparity of the
parties’ future income, and the disparity in currently available
and future benefit packages?
Wife’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).
We consider Wife’s questions mindful of the following.
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing
the propriety of an order effectuating the equitable distribution
of marital property is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. We do not lightly find an abuse of
discretion, which requires a showing of clear and convincing
evidence. This Court will not find an abuse of discretion unless
1
The only change from the order proposed by the master was, as a result of
the trial court’s grant of one of Wife’s exceptions, to give Wife 30 days from
the date of the refinancing or sale of the marital residence, rather than 90
days from the entry of the divorce decree, to pay Husband his remaining
share of the marital value of the equity in the home.
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the law has been overridden or misapplied or the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence in
the certified record. In determining the propriety of an equitable
distribution award, courts must consider the distribution scheme
as a whole. We measure the circumstances of the case against
the objective of effectuating economic justice between the
parties and achieving a just determination of their property
rights.
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v.
Biese, 979 A.2d 892, 895 (Pa. Super. 2009)).
In fashioning an equitable distribution award, the trial
court must consider, at a minimum, the eleven factors set forth
in 23 Pa.C.S.[] § 3502…. These factors require the trial court to
consider the relative economic positions of the parties and the
nature of the parties’ relationship. The section 3502 factors are
not a simple formula, rather they serve as a guideline for
consideration. The facts of a particular case mandate how the
section 3502 factors will be applied.
Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007). The factors
enumerated in section 3502 are as follows.
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of
capital assets and income.
(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
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(7) The contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of the
marital property, including the contribution of a party as
homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
(10) The economic circumstances of each party at the time the
division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated
with each asset to be divided, distributed or assigned, which
ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated
with a particular asset, which expense need not be immediate
and certain.
(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
The record supports the following factual findings made by the special
master, adopted by the trial court, and/or acknowledged by Wife in her brief.
Wife, age 37 at the time of the hearing, has a master’s degree in
environmental management and earned $51,505 per year. She had a non-
marital IRA with a balance of more than $5,500, and stocks inherited from
her mother. Wife contributed $12,000 to the purchase of the marital
residence, which had a market value of $64,000 and an outstanding
mortgage balance of $40,000. Wife continued to reside in the marital
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residence after Husband moved out; she desired to stay in the marital
residence, where she has primary custody of the parties’ two children (ages
17 and 10).
Husband, age 36 at the time of the hearing, has a bachelor’s degree,
was working as a public school teacher under contract earning $72,736 per
year, and was paying Wife $650 per month in child support. He has a
pension, the marital portion of which is $9,240.99. In August 2009,
Husband and his brother inherited from their father real estate worth
$81,420, along with an annuity with a total value of $30,000.
The parties kept separate bank accounts during the marriage. At the
time of separation, Wife drove a 2010 Mini worth approximately the amount
owed on it; Husband drove a 2006 BMW, also having no equity in it.
From this, the master determined that from the $24,000 in equity in
the marital residence and the marital portion of Husband’s pension, there
was $33,240.99 in marital property to be distributed. Upon consideration of
the subsection 3502(a) factors, the master recommended that the parties
retain the personal property that they had amicably divided; that Wife retain
the marital residence; and that there be a 50/50 split of the marital estate,
achieved by Wife paying Husband $7,379.50, which is Husband’s share of
the residence minus Wife’s share of Husband’s pension. Master’s Report,
5/23/2016, at unnumbered 13.
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Wife filed exceptions to the master’s report concerning, inter alia, the
issues she raises on appeal. Wife argues that the decision is not based upon
a full consideration of Husband’s non-marital assets, particularly his
inheritance from his father, given that Wife used funds inherited from her
mother before the marriage for a down payment on the marital residence. 2
Wife’s Brief at 10-11. She acknowledges that, because Husband’s father
died approximately one year before the parties’ separation, “there is
probably a very minimal amount of this property that would be considered a
marital asset.” Id. at 11. Nonetheless, Wife contends that contrasting the
treatment of the two inheritances shows that a 50/50 division of the marital
assets is not just. Id.
Wife also contends that there was insufficient consideration of the
parties’ current and future economic opportunities. Id. at 12. Specifically,
she states as follows.
Given the disparity of the parties’ income now and in the
future, the disparity in the parties’ access to health insurance
and other benefits, combined with the fact that Wife has primary
care of the parties’ minor children, it cannot be said that a 50/50
division accomplishes economic justice in this matter.
Id. at 14.
The trial court offered the following explanation of its decision to
accept the master’s recommendation notwithstanding Wife’s exceptions.
2
Wife concedes that, by using the money as a down payment on the marital
residence, “that asset, even to the extent that it was premarital, became a
marital asset.” Wife’s Brief at 10.
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Wife argues … that the master erred in failing to consider
as an equitable factor Husband’s inheritance from his father.
Husband’s father died in 2009 and bequeathed to Husband and
his brother a home and certain additional property. Husband
later refinanced the home and bought out his brother’s interest.
The mortgage on the residence, where Husband currently
resides, is of an undisclosed value, and therefore the actual
equity in the home is not indicated in the record. Further, the
master concluded that the increase in value of the residence
from the date of Husband’s father’s death to the date of
separation, a period of just over one year, would be negligible.
The court agrees. The master, particularly on the record before
him, appropriately did not attribute significant value to this asset
because it is non-marital and does not significantly change the
parties’ economic circumstances. Nor did he have any evidence
before him to attribute a real value to it.2
_____
2
The Court notes that no discovery was conducted by Wife
prior to the master’s hearing, despite being granted leave
to do so by order entered December 1, 2015. … Wife
contends that the master failed to consider certain values
and/or assets as part of his equitable distribution
determination. Wife did not introduce any evidence to the
master to support such considerations, and the court will
not find error or abuse of discretion where the master did
not have a sufficient factual basis to conclude otherwise.
***
The master did indeed consider Wife’s contribution of
$12,000.00 to the marital residence, but concluded that no
additional credit was due to Wife because she had remained in
exclusive possession of the residence for five years after the
parties’ separation and requested that she remain in possession
after the divorce was granted. …
… The parties resided together prior to the marriage and
prior to purchasing the marital residence, which they financed
together. Wife did contribute the down payment toward the
purchase from premarital funds, but the home always was joint
marital property. Further, although Wife paid the mortgage
during the parties’ marriage, the payments were made from
Wife’s income earned during the marriage, not with pre-marital
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funds. The mortgage was then refinanced after the parties’
separation, to which Husband agreed even though he had not
resided there for several years. Finally, Wife has been in
exclusive possession of the residence for a least five years and
she has not had to secure other housing.
***
Wife argues that the master failed to consider the fact that
she has primary custody of the parties’ two minor children….
The master did make a finding that Husband currently pays $650
per month in child support, but did not otherwise consider Wife’s
primary custody in his equitable distribution recommendation.
Wife contends that the master should have “considered” this, but
does not propose how or on what basis the consideration should
have been made. Wife did not introduce any evidence regarding
additional expenses that she has incurred above what is paid in
child support, nor did she introduce any evidence regarding any
special needs of the children. Moreover, the eldest [sic] child…
soon will be emancipated.
***
Wife argues … that the master erred in “failing to consider
the likelihood of future acquisition of assets and increased
income for [Husband] as compared to [Wife].” Wife argues that
because Husband’s current income is higher than her current
income, and because his employment is secure and hers
supported by year-to-year government grants, the master
should have considered these factors in fashioning the equitable
distribution award. Wife also argues that the master should
have considered the parties’ disparate access to healthcare. The
master concluded in this regard that both parties were employed
full-time, have marketable skills and abilities, and have
retirement plans. He accordingly concluded that they are on
basically equal economic footing. The court finds no error in this
conclusion. Although Husband’s current salary is higher than
that of Wife, his salary is capped based on his education and will
not exceed a particular amount. Wife has a more advanced
degree than Husband and has a history of working for various
kinds of entities. There is not any substantial economic disparity
between the parties or their future prospects for gainful
employment and acquisition of property, and the court does not
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find persuasive Wife’s argument to the contrary. Moreover, and
again, Wife did not introduce any evidence before the master
that would permit him to make any more particular findings in
this regard.
Memorandum, 11/1/2016, at 5-6, 4-5, 7-9 (unnecessary capitalization
omitted).
The trial court offered additional discussion of Wife’s claims in its Rule
1925(a) opinion:
I write here to further reiterate that the master’s hearing
in this case proceeded for only one and one-quarter hours. The
parties were granted leave to conduct discovery prior to the
hearing. Wife did not conduct any discovery; nor did she
present any independent evidence at the master’s hearing to
address the majority of issues she now raises. Further, although
Wife … styles her issues on appeal as errors of the court to
“properly consider” certain circumstances, Wife offered no
alternative calculations on these matters and no evidence to
support such calculations. Because this case is now more than
five years old, and because Wife did not avail herself of her
opportunity to make a more complete record to buttress her
arguments, the court did not, and does not, find that remand to
the master for further proceedings was warranted or necessary.
The court thoroughly reviewed and read the entire record in this
case and continues to conclude that the equitable distribution
scheme fashioned by the master and affirmed by [the trial] court
is fair, equitable, and works economic justice between the
parties.
Trial Court Opinion, 1/5/2017, at 1-2 (unnecessary capitalization omitted).
We discern no error or abuse of discretion by the trial court. First, this
Court will not engage in a factor-by-factor review of the trial court’s rulings.
As we have explained:
We do not evaluate the propriety of the distribution order upon
our agreement with the court[’s] actions nor do we find a basis
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for reversal in the court’s application of a single factor. Rather,
we look at the distribution as a whole, in light of the court’s
overall application of the [23 Pa.C.S. § 3502(a)] factors…. If we
fail to find an abuse of discretion, the [o]rder must stand.
Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v.
Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)).
Second, the record reflects that Wife failed to offer evidence to support
her claims that the master or trial court’s findings as to any factor were
erroneous. She does not point to anything in the record that compels the
conclusion that her economic future is significantly bleaker than that of
Husband, be it because of his non-marital inheritance, her status as the
custodial parent, or their respective incomes or related employment
benefits. See, e.g., Baker v. Baker, 861 A.2d 298, 302 (Pa. Super. 2004)
(“Where the evidence offered by one party is uncontradicted, the court may
adopt this value even though the resulting valuation would have been
different if more accurate and complete evidence had been presented.”);
Smith v. Smith, 653 A.2d 1259, 1268 (Pa. Super. 1995) (holding trial court
did not abuse its discretion in equitable distribution where husband failed to
offer evidence to show marital portion of the increase in value of wife’s
inheritance).
As such, Wife has failed to convince this Court that the trial court’s
50/50 equitable distribution scheme is the product of the law’s being
“overridden or misapplied or [that] the judgment exercised was manifestly
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unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence in the certified record.” Childress v. Bogosian, 12 A.3d
448, 455 (Pa. Super. 2011) (citations and internal quotation marks omitted).
Accordingly, we affirm the trial court’s November 3, 2016 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2017
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